Jeffrey P. Gale, P.A. // Time to Overturn Florida’s Medical Malpractice “Free Kill” Statute

Civil disputes arising from death due to negligence are governed by statutes 768.16-768.26, known as the “Florida Wrongful Death Act.” Section 768.17 sets forth the legislative intent of the Act:

“It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed.”

In all fairness, section 768.17 should read as follows:

“With the exception of cases involving medical negligence, it is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed.” (Language in bold added to make the point of this blog.)

Consider these scenarios:

Scenario No. 1:

Sixty five year old Tom was killed when his vehicle was struck from behind by a Coca Cola truck. Single, he is survived by two adult children over the age of 25. Tom’s children filed suit against Coca Cola and settled the case for a substantial sum of money. Most of the money was paid as compensation for their immense pain and suffering.

Sixty five year old Dick died on the operating table due to a surgeon’s negligence. Single, he is survived by two adult children over the age of 25. Because of an exception contained in Florida’s Wrongful Death Act, Dick’s children did not have a right to be compensated for their immense pain and suffering. The negligent surgeon was able to walk away scot free.

Scenario No. 2

Thirty year old Tom was killed when his vehicle was struck from behind by a Coca Cola truck. He was single and childless. He is survived by his parents. Tom’s parents filed suit against Coca Cola and settled the case for a substantial sum of money. Most of the money was paid as compensation for their immense pain and suffering.

Thirty year old Dick died on the operating table due to a surgeon’s negligence. He was single and childless. He is survived by his parents. Because of an exception contained in Florida’s Wrongful Death Act, Dick’s parents did not have a right to be compensated for their immense pain and suffering. The negligent surgeon was able to walk away scot free.

Section 768.21 of the Wrongful Death Act outlines who may be awarded damages for the wrongful death of a family member. 768.21(3) and (4) authorized the recoveries made by Tom’s survivors. Because Dick’s death resulted from medical malpractice, subsection (8) prevented his survivors from being compensated for their pain and suffering.

(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.

(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.

(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

The Equal Protection Clause contained in Florida’s Constitution, Article I, section 2, provides as follows:

Basic rights.—All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property. No person shall be deprived of any right because of race, religion, national origin, or physical disability.

In Mizrahi v North Miami Medical Center, LTD., 761 So. 2d 1040 (2000), a case involving the surviving adult children of Morris Mizrahi, who died allegedly as a result of medical malpractice, section 768.21(8) faced constitutional challenge. The Florida Supreme Court was asked to answer this certified question:

DOES SECTION 768.21(8), FLORIDA STATUTES (1995), WHICH IS PART OF FLORIDA’S WRONGFUL DEATH ACT, VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FLORIDA AND FEDERAL CONSTITUTIONS, IN THAT IT PRECLUDES RECOVERY OF NONPECUNIARY DAMAGES BY A DECEDENT’S ADULT CHILDREN WHERE THE CAUSE OF DEATH WAS MEDICAL MALPRACTICE WHILE ALLOWING SUCH CHILDREN TO RECOVER WHERE THE DEATH WAS CAUSED BY OTHER FORMS OF NEGLIGENCE?

The Court answered the question in the negative.

To survive constitutional muster, the statute had to satisfy the rational basis test. To satisfy the rational basis test, a statute must bear a rational and reasonable relationship to a legitimate state objective, and it cannot be arbitrarily or capriciously imposed. Dep’t of Corr. v. Fla. Nurses Ass’n, 508 So.2d 317, 319 (Fla. 1987).

The Court adopted the findings of the court below, the Third District Court of Appeal, which held as follows:

“the statute’s disparate treatment of medical malpractice wrongful deaths does bear a rational relationship to the legitimate state interest of ensuring the accessibility of medical care to Florida residents by curtailing the skyrocketing medical malpractice insurance premiums in Florida.”

This is the same reasoning relied on by the Florida Legislature to justify enactment of Fla. Stat. Sec. 766.118, which imposes a statutory cap on noneconomic damages in medical malpractice cases.

In Estate of McCall v. US, 134 So.3d 894 (Fla. 2014), the constitutionality of the cap came under scrutiny. The Court framed the question before it in much the same form it had framed the question in Mizrahi. Its answer was decidedly different.

Having carefully considered the arguments of both parties and the amici, we conclude that section 766.118 violates the Equal Protection Clause of the Florida Constitution under the rational basis test. The statutory cap on wrongful death noneconomic damages fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants. In such circumstances, medical malpractice claimants do not receive the same rights to full compensation because of arbitrarily diminished compensation for legally cognizable claims. Further, the statutory cap on wrongful death noneconomic damages does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.

The majority attempted to distinguish its holding in Mizrahi. In my view, the distinction does not hold water. If anything, the McCall analysis is precedent to find 768.21(8) unconstitutional.

In McCall, the legal parameters were stated as follows:

Our precedent expressly states that a proper equal protection analysis under the rational basis test “requires this Court to determine: (1) whether the challenged statute serves a legitimate governmental purpose, and (2) whether it was reasonable for the Legislature to believe that the challenged classification would promote that purpose.” Warren v. State Farm Mut. Auto. Ins. Co., 899 So.2d 1090, 1095 (Fla. 2005) (emphasis supplied); see also Zapo v. Gilreath, 779 So.2d 651, 655 (Fla. 5th DCA 2001); Fla. Dept. of Ins. v. Keys Title & Abstract Co., 741 So.2d 599, 602 (Fla. 1st DCA 1999). Thus, under Warren, and contrary to the view of the concurring in result opinion, both prongs of the rational basis test must be evaluated to determine the constitutionality of a statute.

The statutory cap was enacted in 2003. The Florida Legislature attempted to justify passage by claiming that “Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude.” Ch.2003-416, § 1, Laws of Fla., at 4035. The Legislature asserted that the increase in medical malpractice liability insurance premiums has resulted in physicians leaving Florida, retiring early from the practice of medicine, or refusing to perform high-risk procedures, thereby limiting the availability of health care. Id. The Legislature relied heavily on a report prepared by the Governor’s Select Task Force on Healthcare Professional Liability Insurance (Task Force), which concluded that “actual and potential jury awards of noneconomic damages (such as pain and suffering) are a key factor (perhaps the most important factor) behind the unavailability and un-affordability of medical malpractice insurance in Florida.” Report of Governor’s Select Task Force on Healthcare Professional Liability Insurance (Task Force Report) (Jan. 29, 2003), at xvii.

The McCall majority studied the findings of the Legislature and the Task Force. In a striking rebuke, the majority found

that the conclusions reached by the Florida Legislature as to the existence of a medical malpractice crisis are not fully supported by available data. Instead, the alleged interest of health care being unavailable is completely undermined by authoritative government reports. Those government reports have indicated that the numbers of physicians in both metropolitan and non-metropolitan areas have increased. For example, in a 2003 report, the United States General Accounting Office found that from 1991 to 2001, Florida’s physician supply per 100,000 people grew from 214 to 237 in metropolitan areas and from 98 to 117 in nonmetropolitan areas, or percentage increases of 10.7 and 19, respectively. Physician Workforce: Physician Supply Increased in Metropolitan and Nonmetropolitan Areas but Geographic Disparities Persisted, No. GAO-04-124, (Oct. 31, 2003), at 23, available at http://www.gao.gov/new.items/d04124.pdf. Thus, during this purported crisis, the numbers of physicians in Florida were actually increasing, not decreasing.

Even the Task Force whose report was relied upon by the Florida Legislature employed extremely equivocal language and speculation when describing the existence of a crisis. For example, the Task Force stated that it “believes” the alleged crisis “could get worse in the coming years…. Medical malpractice insurance premiums may become unaffordable, and/or coverage may become unavailable at any price to many physicians and hospitals.” See Task Force Report, at 211-12 (emphasis supplied). Further, despite blaming “actual and potential jury awards of noneconomic damages” for this ominous prediction, Task Force Report at xvii, the Task Force recognized that there are other explanations for the dramatic rise in medical malpractice insurance premiums.

From these findings, the majority concluded:

Based upon these statements and reports, although medical malpractice premiums in Florida were undoubtably high in 2003, we conclude the Legislature’s determination that “the increase in medical malpractice liability insurance rates is forcing physicians to practice medicine without professional liability insurance, to leave Florida, to not perform high-risk procedures, or to retire early from the practice of medicine” is unsupported. Ch.2003-416, § 1, Laws of Fla., at 4035. Thus, the finding by the Legislature and the Task Force that Florida was in the midst of a bona fide medical malpractice crisis, threatening the access of Floridians to health care, is dubious and questionable at the very best.

It went further:

Even if these conclusions by the Legislature are assumed to be true, and Florida was facing a dangerous risk of physician shortage due to malpractice premiums, we conclude that section 766.118 still violates Florida’s Equal Protection Clause because the available evidence fails to establish a rational relationship between a cap on noneconomic damages and alleviation of the purported crisis. See generally Fla. Nurses Ass’n, 508 So.2d at 319 (stating that for legislation to be constitutional under the rational basis standard, it must bear a rational and reasonable relationship to a legitimate state objective).

Finally, it concluded that changing circumstances may render a law unconstitutional. “Conditions can change, which remove or negate the justification for a law, transforming what may have once been reasonable into arbitrary and irrational legislation. The United States Supreme Court has recognized that ‘”[a] law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed.”‘ Chastleton Corp. v. Sinclair, 264 U.S. 543, 547-48, 44 S.Ct. 405, 68 L.Ed. 841 (1924). See also Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 284 Wis.2d 573, 701 N.W.2d 440, 468 (2005) (‘”A statute may be constitutionally valid when enacted but may become constitutionally invalid because of changes in the conditions to which the statute applies. A past crisis does not forever render a law valid.”‘ (footnotes omitted)).”

Relying on current data, the majority concluded “that no rational basis exists to justify continued application of the noneconomic damages cap of section 766.118.” The data revealed

• There were a higher number of active physicians for every 100,000 people in Florida than in twenty-eight other states.
• 59.4 percent of active physicians who completed medical school in Florida are practicing in Florida. Only three other states retained a higher percentage of medical students.
• Medical malpractice filings in Florida have decreased significantly.
• The leading companies selling medical malpractice insurance in Florida are far from struggling financially.

Our firm receives regular inquiries from individuals blocked by 768.21(8) from being compensated for the tragic loss of a loved one. Usually, their cases have been rejected by other lawyers and they are hoping we know something the others don’t. They cannot believe their ears when hearing that a negligent doctor can walk away without having to pay for a grievous error, so they keep calling around. Sadly, the news is always the same. This is why 768.21(8) is known as the “Free Kill” statute.

The findings in McCall should be enough to strike down 768.21(8). Like the McCall Court, the Mizrahi Court analyzed the constitutionality of its statute under the rational basis test. Interestingly, however, unlike the McCall Court, the Mizrahi Court accepted on face-value the “evidence” put forward by the Legislature to support enactment of the statute. In contrast, the McCall Court performed its own exhaustive analysis of the facts and data presented by the Legislature and considered new evidence. From its examination, the Court concluded that the statute’s disparate treatment did not meet the rational basis standard.

For starters, Mizrahi should be suspect for relying on unverified evidence. However, even if the data was accurate when the statute was enacted more than 25 years ago, circumstances are likely different today. We know they were different when McCall was rendered in 2014. As the McCall Court noted, “Conditions can change, which remove or negate the justification for a law, transforming what may have once been reasonable into arbitrary and irrational legislation. The United States Supreme Court has recognized that “[a] law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed.”

Perhaps a Task Force should be formed to study the issue? It seems the least that that can be done for parents and adult children who have lost loved ones through medical malpractice. Only then can the stated legislative intent of the Wrongful Death Act be fully realized.

It would be nice to believe that, with the right case — and there are many — 768.21(8) will be struck down as unconstitutional. It should be. Unfortunately, the current Florida Supreme Court, seated with a majority of Gov. Ron DeSantis appointees, is likely to have a different point of view.

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